Sankar Das Banerjee vs Rash Behari Mokdal

Banerjee, J.—This appeal is directed against an appellate decree affirming the decree passed by a learned Munsif.

The suit, out of which this arises, was for declaration that the assessment of. union, rate, with education cess, made on the Plaintiff by the Defendant Panighata Union Board, for the year 1358 B.S., was illegal, ultra vires and without jurisdiction and for a permanent injunction restraining the Defendant from realising the same.

The Plaintiff Respondent''s case was that although possessed of properties within the Union Board he did not reside within the said union nor did he own or occupy any building within the said union. He contended that he was, therefore, not liable to taxation u/s 37 of the Bengal Village Self-Government Act, 1919 (hereinafter referred to as the said Act).

The Defendant Union Board contested the case. It was contended that the Plaintiff had a Kutchery house within the territorial limits of Panighata Union Board and, therefore, the Union Board had jurisdiction to assess rates upon him. By way of demurrer the Defendant, inter alia, pleaded that the claim was barred by limitation, u/s 64(2) of the Act.

The trial court decreed the suit. The decree was affirmed in appeal. Hence this second appeal at the instance of the Defendant.

The matter at first came up before P.N. Mookerjee, J., when his Lordship was pleased to refer the matter to a Division Bench for decision. Before us two points were urged for consideration, namely,:

(a) whether the suit was barred by limitation. (6) whether the union had jurisdiction to assess the Plaintiff with the rates.

The learned Subordinate Judge negatived the plea of limitation on the following line of reasoning.

The last contention of the Appellant is that the suit is barred by limitation as it has not been brought within 3 months after the accrual of the cause of action as per Sub-section (2) of Section 64 of the Act. In support of this the learned lawyer has referred to the decision reported in 39 C.W.N. 895. The learned Munsiff held that the case reported in 39 O.W.N. 895 does not apply in this case. In 39 C.W.N. the assessment was challenged as illegal and there was a prayer for refund of tax unlawfully realised. But in this case the assessment is sought to be challenged for absolute want of jurisdiction and there is no prayer for refund of compensation. The learned Munsiff has given another reason as to why the limitation of throe months will not apply in this case. It is as follows:

Clause (2) of Section 64 states that every such action shall be commenced within three months after the accrual of cause of action and not afterwards.

The learned Munsiff states that such action means the action mentioned in Section 64(2). Now if Section 64(2) does not apply then Sub-clause (2) of Section 64 also shall not apply.

The first part of the reasoning, given in the quotation above, does not commend itself to us. If Section 64 of the Act at all applies to a suit of the present description, then, no doubt, it is necessary to commence the action within three months after the date of accrual of the cause of action, u/s 64(2) of the Act. The -court below in trying to distinguish the case Purusottam Singha v. Atul Chandra Chowdhyry (1935) 39 C.W.N. 895 fell into a two-fold error. It assumed that the assessment in the reported case was challenged merely as illegal but overlooked the fact that the assessment was challenged also as ultra vires. Then again the court below thought that the addition of the prayer for refund of the amount unlawfully, realised by the Union Board made all the difference. We are of the. opinion that the addition of the consequential prayer was not a matter of importance in deciding whether Section 64 would be attracted.

The other portion of the reasoning given by the court below is. certainly worthy of consideration and we. feel inclined to agree therewith.

Suits contemplated u/s 64 of the Act are those where the Plaintiff claims damages or. compensation for some unlawful acts committed by the Union Boards or their officers in the exercise or honestly supposed exercise of their statutory powers.

Since the instant case is not one for recovery of such damage or compensation, Section 64(1) of the Act is not attracted. Inasmuch as Section 64(1) does not apply, Section 64(2), prescribing a period of limitation for a suit u/s 64(1) of the Act, will not also be attracted.

In the case reported in 39 C.W.N. 895 (supra), Section 64(2) was applied in a suit where there was no prayer for compensation or damages but the claim was merely for declaration that the assessment was illegal or ultra vires and for refund of the amount recovered by the Union Board from the Plaintiff. The point in its present form, however, did not arise in that case. The case proceeded on the assumption that Section 64(2) in any event, would apply to the facts and circumstances of the case and the only dispute was as to since when the period of three months'' limitation, prescribed under the Sub-section, was to run. Nasim Ali, J. held, in that case, that the time was to run when the assessment became final u/s 39 of the Act and not from the time when the District Magistrate might revise the assessment, u/s 40 of the Act.

On the question to which class of cases Section 64 will apply, the decision in Kedaruddin Ahamed v. Sm. Samsur Mata (1937) 41 C.W.N. 769 , is a far more direct authority. In that case Mukerjea, J. held that the suits contemplated by Section 64 were suits for damages or compensation for wrongful acts committed by the Union Board or its officers in the exercise of its or their statutory powers. His lordship observed:

It is difficult to suggest any other interpretation, of the section having regards to the provisions of its Sub-clause (3). That sub-clause empowers the Union Board or the person or officer, Upon whom notice is served to tender amends to the Plaintiff in the shape of money compensation and upon such tender being made the Plaintiff shall not recover."-meaning thereby, shall not recover compensation or damages.

We respectfully agree with the observation made by Mukerjea, J., in the aforesaid decision and hold that Section 64 is not attracted to a case of the present description. If Section 64 be out of the way, then, it is not disputed that the suit was filed within time and was not barred by limitation.

We now turn to the other point argued on. behalf of the Appellant. It was contended that the Plaintiff Assessee was in occupation of a house, locating his Kutchery, within the territorial limits of the Union Board. He was, therefore, liable to pay union rate. The contention was sought to be repelled by arguing that although possessed of certain properties within the union, the Plaintiff was neither the owner nor the occupier of any building within the union;. The court below found that the Plaintiff was using the out-house of one Mahim within the territorial limits of the Union Board for realisation of rents from his tenants. The Plaintiff was, however, found not to be a tenant but a licensee in. respect of the aforesaid out house. The court below further held that as a licensee the Plaintiff did not come within the mischief of the expression "occupier" as in Section 37 of the Act. For the aforesaid conclusion the court below found support in air obiter dictum by Henderson, J., in a case Hani Prova Boy v. Subodh Chandra Biswas (1943) 47 C.W.N. 533 .

In our opinion, the Plaintiff''s case stands on a far better footing, because the finding that the Plaintiff was a licensee in respect of an out-house, belonging to Mahim, was based on evidence where from the conclusion would not follow. The question whether a person is, a licensee under another is not wholly a question of fact but a mixed question of law and fact. We, therefore, decided to examine the evidence on the record, in exercise of our powers u/s 103 of the Code of Civil Procedure, and we find on examination of the evidence that the question was wrongly determined by the court below. P.W. 1 Bholanath Dey, Plaintiff''s Karmachari, deposed in his examination-in-chief that the Plaintiff had no Kutcharibari in any of the villages within Panighata Union. In his cross-examination, he further denied that he realised rents from the tenants of Radhakantapur, from the house of Mazammal (Plaintiff''s moharar). He stated affirmatively that he used to collect rents from the tenants "by going to tenants'' houses". Mozammal is admittedly a son of Maliim Mondal, whose out-house, the Defendant alleged, the Plaintiff used as the Kutchari-bari. P.W. 1 was supported by P.W. 3 a tenant, P.W. 4 Mozammal himself, P.W. 5 the ^Manager of the Plaintiff''s estate. On behalf of the Defendant, D.W. 1, the Vice President of the Union Board, deposed to the following effect:

We have assessed Union Rate upon the plaintiff as he has got a Kutchery bari within our union, and so we have assessed tax upon the income derived, from properties within our union. The Plaintiff has been using the out-house of Mahim Sekh as the kutchery bari from the year 1357 B.S.

In his cross-examination, however, he broke down and admitted that he did not know in what right the Plaintiff was using the; out-house of Maliim as a Kutchery-bari. Three other persons D.W. 2, D.W. 3 and D.W. 4, all tenants of the Plaintiff, deposed to the effect that at times they paid rent to the Plaintiff''s'' mohorar at the house of Mahim Sekh. D.W. 2 also deposed to the effect that "Punnaha" ceremony was also performed in the house of Mashim for the last one or two years.

From the above type of evidence it is difficult to, come to the conclusion that the Plaintiff was a licensee in respect of the outhouse of Mahim. If a landlord appoints a mohorur or agent for collection of rent but gives him no office wherefrom to work, such an agent is at liberty to work for the landlord at any place he likes, including in his own house or in his paternal house. If he so works, he does not become a licensee for the landlord in his own house or in his father''s house. Sines there is nothing to establish that the Plaintiff is a licensee of any building within the Union Board and since it could not be established that he was either an owner or a tenant of any building within the Union Board, he cannot be saddled with the liability of payment of union rates. The mere fact that his mohorur or collecting agent worked in a house for the Plaintiff, which was the mohorur''s own house or the mohorur''s father''s house, would not create any interest in the house in the Plaintiff. The fact that an agent occupied a house of his own, which, working for the principal, would not render the agent''s principal also an occupier of the house. We, therefore, hold that the court below rightly held that the Plaintiff had no liability to be taxed under 37 of the Act.

As a last resort Mr. Laik, learned Advocate for the Appellant, argued that although not liable to pay taxes u/s 37, the Plaintiff Respondent was, nevertheless, liable to be assessed u/s 101(1)(k) of the Act read with Rule 5 of the Rules regarding assessment and collection of union rates. This, argument is wholly misconceived. Section 101 invests the State Government with powers to make Rules to carry out the purposes of the Act. Clause (k) of Sub-section (1) of the section authorises the State Government to make Rules, (a) for the making of an assessment by the Union Board u/s 39, (b) for imposing the rate u/s 37, and (c) for prescribing u/s 41 the method and time of payment of such rate. Rule 5 of the Rules regarding assessment is to the following effect:

No person shall be assessed who does not own or occupy a building within the union. A person who, though liable to pay the rates, does not reside within the union, shall be assessed on the buildings which he owns or occupies within the union, and on any income which he derives from buildings or other property held or from trade or business conducted or other occupation held, within the union, or which he brings into the union from outside to be spent or otherwise enjoyed by him within the union.

Explanation.-Ownership or occupation includes part ownership or occupation, and ownership or occupation of a building or part of a building for any portion of the year shall render the owner or occupier liable to pay the rate.

In our reading of the scheme of the Act, the liability for taxation and the persons to be taxed are to be found only in Section 37. There is nothing in Rule 5, read with Section 101(1)(k), which goes beyond the scheme of Section 37 of the Act. If it did, we would have surely struck clown that part of the Rule as ultra vires on the principles which govern the limits of delegated legislative powers. Since the Plaintiff neither owns nor occupies any building within the area of the Union Board, he cannot be taxed to union rate.

There is one other matter to which we need refer. The Plaintiff Respondent prayed for a declaration that the assessment of education cess on him by the Union Board was also ultra vires the powers of the Union Board, and he also prayed for a consequential injunction restraining the Union Board from realising such cess. This prayer cannot succeed in the form made for the simple reason that education cess is not assessed by the Union Board. u/s 34(3) of the Bengal (Rural) Primary Education Act, 1930, Union Boards concerned have power only to. collect education cess and not to assess the same. The word "concerned" indicates that Union Board, which assesses union rate on an Assessee and that is the Union Board which is authorised to collect education cess from such Assessee. If the "Appellant Union Board cannot assess the Respondent to union rate, then it is not the Union which is "concerned" with the realisation of the education cess from the Respondent. Although of that opinion we cannot allow the prayer in the form made for the reason already stated. Mr. A run Prakash Chatterjee, learned Advocate for the Respondent, realised his difficulty and prayed for withdrawal of the prayer with liberty to claim relief in an appropriate proceeding in future. We allow the prayer and permit him to withdraw the prayer regarding education cess, with the liberty as prayed for.

In the view that we take, we dismiss this appeal subject to the modification that the prayer for declaration and injunction in respect of education cess shall be treated as withdrawn, with liberty to reagitate the same as indicated in this judgment.

The Appellant must pay costs of this appeal to the Respondent.

Before we leave this appeal, we have one other observation to make. u/s 18 of the Act, every Union Board shall be a body corporate by the name of ''''the Union Board (name of Union)" and shall have perpetual succession and a common seal, and shall by the said name sue and be sued. In the plaint, the Defendant was described as follows:

Panighata Union Board, having its office at Jamalpur (in the house of Sj. Sankar Banerjee, Bar-at-law), P.S. Kaligunj, district Nadia.

The description, as in the plaint, finds place in the decree of the trial court. In the memorandum of appeal before the lower appellate court the same is the description of the Defendant Appellant before that court. The description of the Defendant, so far, was more or less the correct description, although more precisely the description should have been:

The Union Board, Panighata, etc Strangely enough, in the memorandum of appeal before this Court the description of the Defendant Appellant changed and the Defendant was described as:

Sankardas Banerjee, Barrister-at-law, President of the Panighata Union Board (having its office at the house of Sj. Sankardas Banerjee), P.S. Kaligunj, district Nadia.

The above description is not in conformity with Section 18 of the Act and an appeal at the instance of the President is not maintainable in law.

Since we are dismissing the appeal we need not pursue the point further.

Nitogi, J.:

I agree.